JUDGMENT
S.B. Sinha, J.
1. In this application the petitioner has prayed for a declaration that Clause 13 of the Discipline and Appeal Rules of National Institute of Foundary and Forge Ltd. (in short to be stated as NIFFT) is unconstitutional as also for issuance of an appropriate writ for quashing the orders dated 15-9-1989 as contained in Aunexure-2 to the writ application as also the order dated 23-8-1991 as contained in Anuexure-13 thereof.
2. Benefit of all unnecessary details, the fact of the matter is as follows
The petitioner was working as Office Superintendent of the respondent No. 2. He at the relevant time was also General Secretary of the National Institute of Foundry and Forge Ltd. Employees’ Union. On 6-9-1989 he called a meeting of NIFFT Employees Union. On the same day, the Administrative Officer issued a note informing the petitioner that the institute took a serious view of the matter that he had called a meeting in the premises of the respondent No. 2 without obtaining prior permission. The petitioner allegedly gave certain threats to the respondent No. 3 and his wife.
3. Thereafter by reason of an order dated 15th September, 1989 as contained in Annexure-2 to the writ application, respondent No. 3 in purported exercise of his power conferred upon him under Rule 13(i) and (ii)of the Discipline and Appeal Rules directed removal of the petitioner from services with effect from the said date.
4. The petitioner preferred an appeal before the respondent No. 4 who by reason of an order dated 31-3-1990 dismissed the said appeal. The petitioner, thereafter, filed a writ petition in this Court being CWJC No. 760 of 1990 (R) which was allowed by this Court by judgment dated 13-3-1991 directing :
In this view of the matter, in my opinion, the appellate order as contained in Annexure 8 to the writ application cannot be sustained.
The respondent No. 3 is, therefore, directed to consider the memo of appeal of the petitioner and pass a reasoned order dealing with the contentions raised by the petitioner in the appeal.
It may, if an opportunity is sought for, also give a personal hearing to the petitioner.
5. Thereafter by an order dated 23rd August, 1991 as contained in Annexure-10, the respondent No. 4 again dismissed the appeal of the petitioner.
6. The petitioner filed another writ application in this Court being CWJC No. 103 of 1991(R) and by an order dated 14-11-1991 as contained in Annexure-11 to the writ application, a Division Bench of this Court allowed the said writ application holding :
From a perusal of the impugned order as contained in Annexure-12 to the writ application, it is evident that the appellate authority has not assigned any reason whatsoever as to why a disciplinary proceeding should not be held as against the petitioner.
In this view of the matter, in our opinion, the impugned order cannot be sustained.
Taking into consideration the facts and circumstances of this case, the order dated 23rd August, 1991 passed by respondent No. 3 is set aside. However, he shall be entitled to pass a fresh speaking order dealing with the contentions of the petitioner in terms of the Judgement of this Court as contained in Annexure-A to the counter-affidavit. Respondent No. 3 before passing an order may give another opportunity of hearing again to the petitioner. The petitioner shall appear before respondent No. 3 within two weeks from today and thereafter a date shall be fixed for hearing of this case.
7. The petitioner thereafter communicated the said order to the appellate authority and prayed for fixing a date of hearing so that he may avail the opportunity of being heard in person by a letter dated 23-11-1991. He alongwith the said letter also submitted a written argument which is contained in Annexure-12 to the writ application. The petitioner filed an application for initiating a proceeding against the appellate authority under the Contempt of Courts Act, as allegedly he refused to accept the order of this Court being (WJC No. 276 of 1991 (R). In the said proceedings, this Court directed the appellate authority to appear in person; whereafter the petitioner was given an opportunity of being heard in person on 27-12-1991.
8. By reason of the impugned order dated 13-12-1991 as contained in Annexure-13 to the writ application, the appeal of the petitioner has again been dismissed.
9. In this case, a counter-affidavit has been filed wherein it has inter alia been contended that from a perusal of Annexure-6 to the writ application, it would appear that reasons have been communicated to the petitioner as to why he had to be removed from services without holding any enquiry. Various other acts of omission and commissions on the part of the petitioner have also been brought on records.
10. It has further been contended that as in the earlier writ application this Court did not allow the prayers made therein, the same would be deemed to have been refused and thus, this application is barred under the principles of res judicata. It has also been contended that in CWJC No. 114 of 1990 (R) as also in CWJC No. 760 of 1990 (R), no allegation of bias or mala fide on the part of the respondent No. 3 was raised, or the constitutionality of Rule 13 of the Discipline and Appeal Rules was questioned therein by the petitioner.
11. It has also been brought to my notice that in CWJC No. 1034 of 1991 (R) also no allegation of bias or mala fide was raised and only by way of an application for amendment of the writ petition filed on 29-8-1991 the vires of aforementioned Rule 13 was challenged.
12. It was pointed out that even in the memorandum of appeal filed before the appellate authority, neither any allegation of mala fide or bias has made nor the constitutionality of Rule 13 was questioned, nor in the written argument filed before the said authority on 23-11-1991 (Annexure 1), such a contention was raised. However, it appears that in the said written argument it was inter alia contended that recording of reasons is a condition precedent for passing of such an order and an argument was also advanced to the effect that respondent No. 3 had passed the order of removal out of his personal grudge against the petitioner. Even in the present writ application, no specific allegation of bias or mala fide has been raised and only a general allegation has been made to the effect that the impugned order is arbitrary and illegal.
13. It is, therefore, contended that the petitioner has taken new points in this writ application which having not been taken in the earlier writ applications, he is estopped and precluded from doing so. My attention was further drawn to paragraphs 23, 24, 32, 33, 34, 35 and 36 of the counter-affidavit wherein allegedly the reasons for the petitioner’s removal from services had been stated.
14. My attention had further been drawn to various statements made in the counter-affidavit for showing that the conduct/past conduct of the petitioner had not been good for which a committee has also made an adverse report as also in a general meeting of faculty Board which included the Administrative Officer and the Section Officer, the action of the writ petitioner was condemned.
15. Mr. P.K. Sinha, learned Counsel appearing on behalf of the petitioner has raised a number of contentions in support of this application.
The learned Counsel firstly submitted that Rule 13 of the Discipline and Appeal Rules is ultra vires Article 14 of the Constitution of India, inasmuch as unlike the Second Proviso appended to Article 311(2)(b) of the Constitution of India, in case of a public sector undertaking ‘security of State’ is not involved.
16. It has further been contended that the said provision confers an arbitrary power upon the employer and on that ground also, Clause 13 should be declared ultra vires Article 14 of the Constitution of India.
17. Mr. Sinha, next contended that in any event, in this case, the respondent No. 3 being himself the accuser, the witness and the Judge, he must be held to be biased as against the petitioner and thus he should not have been a judge of his own cause.
18. The learned Counsel in this connection has drawn my attention to the fact that even in a case where the disciplinary authority is the only person to deal with such matters, he could have asked the Board of Directors to delegate the power of disciplinary authority for the purpose of said case in favour of some other persons and in this connection may attention has been drawn to Swami’s C.C.S. Rules at page 33 wherein a circular of the Central Government dated 27-11-1965 has been made reproduced and which reads as follows–
When the competent authority is unable to function as the disciplinary authority. In a case where the prescribed appointing or disciplinary authority is unable to function as the disciplinary authority in respect of an official, on account of his being personally concerned with the charges of being a material witness in support of the charges, the proper course for that authority is to refer such a case to Government in the normal manner for nomination of an ad hoc disciplinary authority by a Presidential Order under the provisions of Rule 12(2) of C.C.S. (C.C.A.) Rules, 1965.
19. Learned Counsel has, in this connection, relied upon an unreported decision of this Court in the Director-General of Mines Safety v. Ramsringar Singh being S.A. No. 3657 of 1974 disposed of on 17th August, 1981 and A.K. Kaipak v. Union of India (UOI) .
20. The learned Counsel next contended that in any event as the petitioner had a fundamental right, as an union leader, to call for a meeting and a from the report as contained in Annexure-5 to the writ application, it would appear that an adverse report had been given only as against one S.K. Singh and as also from the report contained in Annexure 13 to the writ application it would appear that no allegation has been made as against the petitioner, an inference can be drawn that the respondent No. 3 had prejudised the entire issue. It was further submitted that in any event it was not a fit case where the disciplinary proceeding should have been dispensed with. The learned Counsel in this connection has relied upon a decision of the Supreme Court in Chief Security Officer v. Singasan Rabi Das , in Jaswant Singh v. State of Punjab and Ors. and in Smt. Nirmala Chakravorty v. Commercial Port of Calcutta 1968 L1C 584.
21. Mr. Sinha next submitted that in view of the decision of the Supreme Court of India in Union of India (UOI) v. Tulsiram Patel , it must be held that only in rare cases, disciplinary proceeding should be dispensed with and even in such a case, full opportunity should be given to the petitioner to place all materials before the appellate authority.
22. It was next contended that in any event as the punishment awarded as against the petitioner is unreasonably harsh and disproportionate to the gravity of the offence alleged against him, the same is violative of Article 14 of the Constitution.
23. Reference in this connection has been made to Bhagat Ram v. State of Himachal Pradesh and Ors. .
24. Mr. Debi Prasad, learned Counsel appearing on behalf of the respondents, on the other hand, inter alia submitted that as the petitioner had not raised the question of bias or prejudice as in the earlier writ application or even before the appellate authority, the petitioner is estopped from raising the said plea in this application.
25. According to the learned Counsel, in any event, the petitioner should be deemed to have waived his right to agitate the said matters. Reliance in this connection has been placed in Bihar State Road Transport Corporation v. State Transport Appellate Tribunal, Patna and Ors. 1985 PLJR 856.
26. It was further submitted that as in the earlier writ application the reliefs sought for by the petitioner had not been granted, the same must be held to be barred under the principles of res-judicata.
27. Reference in this connection has been made to Mpsore State Road Transport Corporation v. Babajan Conductor , The VIth Incom Tax Officer, Bangalore v. K. Y. Pillaiah and Sons , and in B.C. Mulajkar v. Government of Andhra Pradesh .
28. The learned Counsel further submitted that in this case, there are enough materials to show as to why it was not reasonably practicable to hold the dera rt mental enquiry as against the petitioner.
29. The learned Counsel in this connection has relied upon the decision of the Supreme Court in Union of India (UOI) v. Tulsiram Patel , Shivaji Atmaji Sawant v. State of Maharashtra , Satyavir Singh and Ors. v. Union of India (UOI) and Ors. and Ikramuddin Ahmed Borah v. Suptd. of Police, Darrang .
30. The learned Counsel contended that as in terms of Rule 13 of the Discipline and Appeal Rules, the employer has arrived at a subjective satisfac tion as to whether it was not reasonably practicable to hold the enquiry, such an order can be questioned only on the ground of mala fide and not on any other ground in view of the fact that such a question has not been raised by the petitioner, this Court cannot interfere with the impugned order.
31. Reference in this connection has been made to Goplan v. State of Madras .
32. The learned Counsel further pointed out that in the earlier writ application, existence of sufficiency of materials to arrive at the aforementioned satisfaction having not been questioned, such a ground cannot be allowed to be raised in the subsequent writ application The learned Counsel in this connection has relied upon V K. Kulkarnl v. State of Mysore and Anr. 1953 Mys 303 and in T. G Mudaliar v. State of Tamil Nadu .
33. Mr. Prasad further submitted that as an order of dismissal must stand or fall on its own merits, the same cannot be set aside on the ground that other persons who are already similarly situated have not been proceeded against. Reliance in this connection has been placed in Girja Nandan Singh v. State of Bihar 1987 PLJR 95.
34. With regard to the reports as contained in Annexures 15 and 16 to the writ application, my attention was drawn to the statements made in paragraphs 64, 65, 66, 74 and 77 of the counter-affidavit and it was submitted that from a persual of the letter dated 20tb June, 1991 as contained in Annexure-18 to the writ application it would be evident that the said reports were obtained under duress or coercion and thus the same should not be relied upon by this Court.
35. With regard to quantum of punishment imposed upon the petitioner, the learned Counsel submitted that in view of the conduct of the petitioner and also his past misconduct, imposition of punishment of removal from services cannot be said to be excessive. The learned Counsel in this connection has drawn my attention to paragraphs 26 and 27 of the counter-affidavit.
36. In view of the rival contentions of the parties, as noticed hereinbefore, the following questions arise for consideration in this application :
(1) Whether Rule 13 of the Discipline and Appeal Rules of the respondent-company is unconstitutional?
(2) Whether in any view of the matter in the facts and circumstances of the case, the respondents acted illegally and without jurisdiction in taking recourse to the provisions of Rule 13 of the said Rules?
(3) Whether the respondent No. 3 being himself the complainant and a witness as against the petitioner and thus being biased and prejudiced as against him, could have acted as disciplinary authority?
(4) Whether the present writ application is barred under the principles of res-judicata?
37. Re-Question (1) :
Rule 13 of the said Rules reads as follows :
Special Procedure to certain cases. Notwithstanding anything contained in Rules 7, 8, 9,10, 11 and 12 in case where :
(i) where a penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge involving moral turpitude in a Court of law.
(ii) where the employee is absconding or where the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure in the said rule; and
(iii) where reasons of security so warrant.
The Disciplinary Authority may remove or dismiss an employee from service without following the procedure laid down in Rules 8-12.
38. The Second Proviso appended to Clause (2) of Article 311 of the Constitution of India reads thus :
Provided further that this Clause shall not apply :
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
39. The constitutionality of the aforementioned rule has Inter-alia been questioned on the grounds :
(a) that the said rules confers an arbitrary uncanalised power upon the Disciplinary Authority; and
(b) in view of the fact that the respondent No. 2 is a company, a disciplinary proceeding could not be dispensed with as the question of its security does not arise.
40. Form a perusal of the impugned order dated 15th September, 1989 as contained in Annexure-2 to the writ application, it appears that the services of the petitioner were terminated by the respondent No. 3 in exercise of his power contained in Rule 13(ii) and (iii) of the said rules.
41. The appellate authority, however, in his impugned order dated 31-12-1991 as contained in Annexure-13 to the writ application held that the order of dismissal of the petitioner was justified both for the reason that it was reasonally not practicable to hold a departmental enquiry and also for the reason that at the relevant point of time there was serious indiscipline and in subordination and acts of violence on the part of the petitioner which lead to the satisfaction of the Director of a likelihood of terrorising the enquiry officer and the witnesses.
42. As seen hereinbefore, Rule 13 of the said rules is in puri-materia with the Second Proviso to Clause (2) of Article 311 of the Constitution of India.
43. In Union of India (UOI) v. Tulstram Patel , the Supreme Court upheld the constitutionality of the aforementioned provi sion. The Suprme Court in that case overruled that part of its earlier decision in The Divisional Personnel Officer v. T. R. Challapan , wherein it was held that the delinquent is required to be given an opportunity of bearing before any penalty can be imposed upon him. The constitutionality of the aforementioned provision has also been considered in Challapan’s case (supra) and in that case the Supreme Court clearly held that the said provision is intra vires.
44. It is now well-known that a rule does not become unconstitutional if the guidelines can be found out from the provisions thereof. The question as to whether it is reasonably practicable to hold enquiry or whether the security of the employer is or is not involved has not only to be considered on the objective findings of the disciplinary authority but the same is also required to be considered independently by the Appellate Authority. The requirement of passing a speaking order and also the requirement of the appellate authority to consider all aspects of the matter independently, in my opinion, provide for sufficient safeguards.
Tulsi Ram Patel’s case (supra) was analysed by the Supreme Court in Satyavir Singh v. Union of India (UOI) , wherein it has been pointed out that Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which was in part material identical with Rule 14 of the Railway Service (Discipline and Appeal) Rules, 1968 (Constitutionality whereof was up valid in Tutsi Ram Patel’s case (supra) the interpretation of Rule 19 would be same as that of the said Rule 14.
With regard to Clause (b) of the Second Proviso appended to Article 311(2) of the Constitution, it was observed :
In a case falling under Clause (b) of the second proviso it is not necessary that the civil servant should be placed under suspension until such time as the situation improves and it becomes possible to hold the inquiry because in such cases neither public interest nor public good requires that salary or subsistence allowance should be continued to be paid out of the public exchequer to the concerned civil servant. It would also be difficult to foresee how long the situation would last and when normally would return or be restored. In certain cases, the exigencies of a situation would require that prompt action should be taken and suspending a civil servant would not serve the purpose and sometimes not taking prompt action might result in the trouble spreading and the situation worsening and at times becoming uncontrollable. Not taking prompt action may also be construed by the troublemaker as a sign of weakness on the part of the authorities and thus encourage them to step up their activities or agitation. Where such prompt action is taken in order to prevent this happening, there is an element of deterrence in it but this is an unavoidable and necessary concommittance of such an action resulting from a situation which is not of the creation of the authorities.
The contention that where an inquiry into the charges against a civil servant is not reasonably practicable, nonetheless before dispensing with the inquiry there should be a preliminary inquiry into the question whether the disciplinary inquiry should be dispensed with or not is illogical and is a contradiction in terms. If an inquiry into the charges against a civil servant is not reasonably practicable, it stands to reason that an inquiry into the question whether the disciplinary inquiry should be dispensed with or not is equally not reasonably precticable.
With regard to Clause (c) of Second Proviso to Article 311(2), the Supreme Court observed :
The condition for the application of Clause (c) of the second proviso to Article 311(2) is the satisfaction of the President or the Governor, as the case may be, that it is not expedient in the interest of the security of the State to hold a disciplinary inquiry.
Such satisfaction is not, required to be that of the President or the Governor personally but of the President or the Governor, as the case may be, acting in the constitutional sense.
‘Expedient’ means ‘advantageous, fit, proper, suitable or politic’. Where, therefore, the President or the Governor, as the case may be, is satisfied that it will not be advantageous or fit or proper or suitable or politic in the interest of the security of the State to hold an inquiry, be would be entitled to dispense with it under Clause (c) of the second proviso.
Under Clause (c) of the second proviso the satisfaction reached by the President or the Governor, as the case may be, must necessarily be a subjective satisfaction because expediency involves matters of policy.
The Supreme Court, thereafter, considered the scope and ambit of second proviso to Article 311(2) of the Constitution of India as also its earlier decision on the aforementioned subject observed that the majority judgment in Tulsi Ram Patel’s case (supra) is more beneficial to civil servants and confers greater right upon them in Challapan’s case (supra).
45. This aspect of the matter has again been considered by the Supreme Court in Ram Chander v. Union of India (UOI) , wherein it has been held that an objective consideration is possible only if the delin quent servant is heard and given a chance before a final order is passed on his appeal by the appellate authority.
It was further observed that consideration of fairplay and justice also requires that such a personal hearing should be given. As thus, a delinquent employee gets an opportunity to place his case fully before the appellate authority and is also entitled to an opportunity of personal hearing, the provisions of Rule 13 cannot be held to be ultra vires Article 14 of the Constitution.
46. So far as the submission to the effect that security of the State and security of the Company cannot be equated, cannot also be accepted. In terms of Sub-rule (iii) of Rule 13, the procedures laid down under Rule 12 of the Rules can be dispensed with for reasons of security. The ambit of Sub- rule (iii) of Rule 13 is wider than Clause (c) of Second Proviso appended to Article 311(2) of the Constitution.
It is true that in a given case, the reasons stated for dispension of a departmental proceeding may fall both under Sub-rules (ii) and (iii) of Rule 13, but for the purpose of considering the vires of the said provision, the same may be held to be irrelevant. Whereas in terms of Clause (b) of the Second Proviso appended to Article 311(2) of the Constitution of India an enquiry can be dispensed with, where the security of the State is involved; there does not appear to be any reason as to why the similar consideration cannot be the basis for dispensing with the disciplinary enquiry where security of the employer or its properties or security of the employees is involved. It has, therefore, to be held that Rule 13 of the said Rules is not unconstitutional.
47. Re: Question (2) :
It is stated by the respondent that a disciplinary proceeding as provided for under Rules 8 to 12 of the Rules was not possible as threats were given by the petitioner to the effect that he would not allow the enquiry officer to proceed with the departmental proceeding. It was alleged that the life of the people involved therein namely the Enquiry Officer, Presenting Officer and other Officers, Staff and students of the Institution as also security of the Institute were in peril.
48. It has further allegedly been found that the witnesses of the occur rence were associates of the petitioner and thus no independent witness was available for disposing in the disciplinary proceeding to be held against him.
49. Before proceeding to consider the matter further the decisions cited by Mr. Sinha may be noticed.
In Smt. Nirmala Chakraborty v. Commrs. Port of Calcutta 1968 LIC 584, D. Basu, J. observed :
The court would never encourage the petitioner or anybody else to commit an act of ‘indiscipline’ or other ‘misconduct’ but there must be a fair inquiry consonant with natural justice before the delinquent may be punished on the finding that such charge has been established.
50. There cannot be any dispute with the aforementioned proposition inasmuch, unless excluded expressly or by necessary implication, the doctrine of or the ‘audi alterant partem’ applies in a case where a person is to be dismissed or removed from services.
51. However, in that case a rule like Rule 13 of the said rules was not involved.
52. In Jaswant Singh v. State of Punjab, reported in 1991 SC 385 it has been held that objective satisfaction of the concerned authority in terms of Article 311 of the Constitution of India must be fortified by independent material. The Supreme Court held :
Our attention was not drawn to any material existing on the date of the impugned order in support of the allegation contained in paragraph 3 thereof that the appellant had thrown threats that he and his companions will not allow holding of any departmental enquiry against him and that they would not hesitate to cause physical injury to the witnesses as well as the enquiry officer, if any, such attempt was made. It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3 in the impugned order. Clause (b) of the second proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at p. 270 (of 1985 (Supp) 2 SCR 131): (at p. 1479 of AIR 1985 SC 1416) of Tulsi Ram’s case ;
‘A disciplinary authority is not expected to; dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail.’
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixtt of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned Officer. In the counter filed by the third respondent it is contended that the appellant, instead of replying to the show-cause notices, instigated his fellow police officials to disobey the superiors. It is also said that he threw threats to beat up the witnesses and the Inquiry Officer, if any, departmental inquiry was held against him. No particulars are given. Besides it is difficult to understand how he could have given threats etc. When he was in hospital. It is not shown on what material the third respondent came to the conclusion that the appellant had thrown threats as alleged in paragraph 3 of the impugned order. On a close scrutiny of the impugned order it seems the satisfaction was based on the ground that he was instigating his colleagues and was holding meeting with other police officials with a view to spreading hatred and dissatisfaction towards his superiors. The allegation is based on his alleged activities at Jullundur on April 3, 1931 reported by SHO/GRP, Jullundur. That report is not forthcoming. It is no one’s contention that the said SHO was threatened. The third respondent’s counter also does not reveal if he had verified the correctness on the information. To put it tersely the subjective satisfaction recorded in paragraph 3 of the impugned order is not fortified by any independent material to justify the dispensing with the inquiry envisaged by Article 311(2) of the Constitution. We are, therefore, of the opinion that on this short ground alone the impugned order cannot be sustained.
53. In Chief Security Officer v. Singasan Rabi Das . In that case, the Supreme Court observed :
In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witnesses of the security, other Railway employees since this will expose these witnesses and make them ineffective in the future. It was started further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence these grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment.
54. In Tulsiram Patel’s case (supra), the Supreme Court held that the matter as to whether it so reasonably practicable to holding an inquiry is a matter of assessment to be made by the disciplinary authority but he is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motive or merely to avoid the holding of an inquiry or because the Department’s case is weak and must fail.
55. In Shivaji Atmaji Sawant v. State of Maharashtra and Ors. , it was held that where reason for dispensing with inquiry served separately upon the dismissed employees which was recorded later, the same by itself will not vitiate the order of disciplinary inquiry, if the same was otherwise justified.
In Shivaji’s case (supra), the Supreme Court took into consideration its earlier decisions in Tulsiram Patel’s and Satyabir Singh’s cases (supra).
56. The Supreme Court noticed the ratio in Tulsiram Patel’s case (supra) as referred to hereinbefore, and held that in a case where the witnesses are not available on account of fear of the officer concerned, Clause (b) of second Proviso to Article 311 can be invoked.
57. From the conspectus of the decisions aforementioned, it is evident that whereas clearly the Court will not interfere with the said decision of the disciplinary authority in passing of an order of dismissal without holding a disciplinary proceeding the Court shall consider the materials on record for the purpose of arriving at a finding as to whether the satisfaction of the disciplinary authority can be supported by the materials under consideration.
58. In this case, reasons recorded for dispensing with the disciplinary proceeding in contained in Annexure-6 to the writ petition which is equivalent to Annexure-I to the counter-affidavit.
In the aforementioned confidential note, it has been stated :
I found Mr. Deepak Diwanjee alongwith a small mob of employees raising the commotion having neglected duties, I went down and asked him and other employees accompanying him not to raise any commotion as the classes were going on and new batch of A.D.C. students had just started their classes. Mr. Deepak Diwanjee alongwith Mr. S.K. Singh, Security Incharge (under suspension), Mr. R.S. Rai, Secruity Incharge, Mr. P.K. Singh, U.D.C., Mr. A.C. Mahata, Stenographer, Mr. B.N. Mahato, Stenographer and Mr. Tarani Yadav, Sr. Security Gurad and other employees were present in the mob.
Mr. Deepak Diwanjee was instigating the employees present there and together with Mr. S.R. Singh, started abusing me in the most obscene and filthy language and terrorized and threatened to remove may clothes and beat me up.
I was alone, but stood my ground and asked them to desist from such behaviour. On the instigation of Mr. Deepak Diwanjee, Mr. S.K. Singh even tried to assault me, In the meanwhile some employees of the Institute started converging on the area and then only they all went away giving me threats of the dire consequences to my life.
Earlier Mr. Deepak Diwanjee convened a meeting of some of his associates employees within the Institute’s premises on September 6, 1989 itself at about 1.30 p.m. without the previous written permission of the undersigned and in the said meeting he instigated his Associate employees for the aforesaid activities.
Subsequently, threats to my life and my family members were conveyed to my wife on September 7, 1989 evening. Mr. Deepak Diwanjee also threatened and terrorized me that on bis direction Mr. S.K.. Singh would derobe and stab me on September 12, 1989.
Later on, Mr. Deepak Diwanjee further threatened me today i.e. on September 15, 1989 at about 11.30 a.m. that he will not spare me at any cost and if I will order for departmental enquiry against him.
The aforesaid actions of Mr. Deepak Diwanjee amount to grave and serious misconduct on his part as illustrated in Rule 5 of the Discipline and Appeal Rules of the Institute by which the employees of the Institute including Mr. Deepak Diwanjee are being governed and the same is also against the interest of security of the Institute.
Mr. Deepak Diwanjee, being the General Secretary of NIFFT Employees Association, from the inception of the activities of the said Association, started spreading an atmosphere of violence, indiscipline, disorderly and indecent behaviour.
I had also an occasion to peruse the one man Enquiry Committee Report submitted by Sri Virendra Kumar, ICS (Retd.) deputed by Government of India, Ministry of Education and in Chapter VI of the said Report I found as under:
‘(1) There is no congenial working atmosphere in the Institute and majority of staff of NIFFT Employees Association are not performing their duties. They, while away in loitering, absconding from duty, gossipping as well as abusing and threatening of dire consequences to the officers and administrative of the Institute even in triffling matter of insignificant value.
(2) Out past experience shows that no disciplinary action can successfully be taken for lack of witnesses as people doubt to pick up courage to come forward openly against those militant hard liners. Thus, I the undersigned being the Disciplinary authority in relation to Mr. Deepak Diwanjee, am fully satisfied that it is not reasonable to follow the procedure laid down in Rules 8 to 12 (both inclusive) of the Discipline and Appeal Rules of the Institute.
I further add that the interest of the security has also been badly affected by the above act of Mr. Deepak Diwanjee or even by likelihood of such acts taking place. The officers, authorities and the students of the Institutes are living under imminent fear of their assault/man-handling and indisciplined behaviour at the hands and/or at the instance of Mr. Deepak Diwanjee which has badly jeopardized the security of the Institute’
59. With regard to the incident of 6th September, 1989 an information was sent by Mr. N.N. Singh, Administrative Officer on 8-9-1989, which is contained in Annexure-5 to the writ application. It is true, as has been contended in the counter-affidavit that no first information report was lodged by the respondent No. 3 but there is nothing to show that the contents of first informa tion report lodged by the Administrative Officer was in any way wrong.
From a perusal of the first information report, it appears that the main allegation of violence was against one Mr. S.K. Singh and the principal allegation as against the petitioner is that he had been arising of most obscene language, tried to assault respondent No. 3 and other acts of insubordinate and violence had been attributed to Mr. S.K. Singh.
In that first information report also, it was contended that Institute is also drawing up disciplinary proceedings simultaneously against all guilty persons.
60. Sofar as the incident of 7th September, 1989 is concerned, no independent material except the statement of respondent No. 3 himself is available on records.
No report to the police or any person appears to have been made. Similarly, there does not exist any materials whatsoever with regard to the alleged threat given by the petitioner on 18th September, 1989, to the effect that he would not spare the respondent No. 3 at any costs if he would order for departmental enquiry against him then he would also not speare the officer concerned who would be appointed to as enquiry officer to hold the departmental enquiry against him. But Annexure-‘6’ discloses some subsequent events.
61. It is however true that the one man enquiry committee headed by by Sri Virendra Kumar, ICS (Retd.) observed :
that no disciplinary action can successfully be taken for lack of witnesses as people doubt to pick up courage to come forward openly against those militant hard liners.
62. It is also admitted that upon lodging of the first information report by the Administrative Officer on 8th September, 1989. a police was posted in the Campus for maintaining the law and order problem.
63. A report dated 11-9-1989 (Annexure-K to the counter-affidavit) was submitted by the Officer Incharge of Jagannathpur Police Station and on the basis thereof, a proceeding under Section 107 of the Cr.P.C. was initiat ed against all concerned persons.
The said proceeding, however was dropped due to afflux of time and after the order of removal or the petitioner was passed by the respondent No. 3.
64. The respondent No. 4 being the appellate authority upon considering all materials on records found that ihe action of the respondent No. 3 was justified. He further took into consideration the fact that even in the past, the petitioner was prosecuted for commission of criminal trespass in the chamber of the then Director Shri Khanna and he was convict ed by the Judicial Magistrate (Ist Class), Ranchi by a judgment dated 23-1-1978 in G.R. Case No. 1180/76 (Annexure-B to the counter-affidavit) found guilty under Section 445, I.P.C. and was sentenced to undergo three months rigorous imprisonment and to pay a fine of Rs. 250/- and in default to undergo 15 days simple imprisonment.
65. The petitioner admittedly, preferred an appeal against the aforementioned judgment of conviction and sentence and the appellate Court, by a judgment dated 14-2-1978 held that as the petitioner and its associates had been demanding withdrawal of the order of suspension passed against the other employees ; their entry in the Chamber of Director cannot be said to be illegal and thus they cannot be said to have committed offence of trespass.
The appellate Court, however, observed :
They certainly insisted for withdrawal of the order of suspension against the two workers which they rightly or wrongly thought to be illegal. They may have even used impolite language and held out threats of gheraoing the director. The evidence does not disclose any abusive words having been used by the workers. Their stay in the room for 10-15 minutes only during which time they have been argumentative, even quarrel some but the evidence definitely shows that they were not violent.
66. From the aforementioned judgment, therefore, it is evident that the petitioner was acquitted on a pure technical ground but his indecent behaviour with the then Managing Director of the respondent-Company was thus a subject-matter of comment of a Court of law also.
A person may not be held guilty of an offence punishable under the Indian Penal Code, in view of the standard of proof required therein but the selfsame action may constitute a misconduct and thus amenable to disciplinary proceeding.
67. It is well-known that the standard of proof required for proving a criminal charge and a misconduct are absolutely different. In fact, even Rules and procedures laid down under the Indian Evidence Act are not appli cable in a departmental proceedings.
The petitioner in his memorandum of appeal (Annexure-7) did not deny that he alongwith Mr. S.K. Singh have abused the Director in a most obscene language. It is also evident from his written statement that the Administrative Officer by a letter dated 8-9-1989 made a request to the S.D.O., Sadar Ranchi to depute a Magistrate and police force to safeguard the life and property of the Director and his family members.
68. The aforementioned overt act, of the petitioner on 6-9-1989 are further fortified by the Resolution of the employees dated 8-9-1989 as contained in Annexure-Q to the counter-affidavit.
From the perusal of that Resolution, it is evident that the respondent No. 3 was requested to take suitable precaution to safeguard the life and property of the Institute especially his own and his family members.
69. From the report of the respondent No. 3 (Annexure-6) it is further evident that on 6th September, 1989, the petitioner aiongwiih Sri S.K. Singh also terrorized him and threatened to remove his clothes and beat him up.
70. It is true that in the first information report lodged by the Adminis trative Officer, as contained in Annexure-5 to the writ application, it has been stated that the Institute was also to draw disciplinary proceeding against all guilty persons but in judging the justifiability of the impugned order of terminationof services of the petitioner dated 15th September, 1989 (Annexure-2) the events which took place subsequent to 6th September, 1989 must also be taken into consideration, which are as follows :
(1) A threat was given to the respondent No. 3 and his family members which was conveyed to his wife on 7th September, 1989.
(2) On 12th September, 1989, the petitioner also threatened and terrorised the respondent No. 3 that on his direction, Mr. S.K. Singh shall derobe and stab him. Yet again on 15th September, 1989 at 11.30 a.m., the petitioner threatened the respondent No. 3 that he would not spare him at any cost and if he passes an order of departmental enquiry against him he would also not spare the officer concerned who would be appointed as an Enquiry Officer to hold a departmental enquiry against him.
(3) The respondent No. 3 had further taken into consideration that the petitioner being the General Secretary of the NIFFT Employees Association from the inception of the actitivities of the said Association, started spreading an atmosphere of violence, indiscip line, disorderly and indecent behaviour.
In his aforementioned notes (Annexure-6 to the writ application equivalent to Annexure-I to the counter-affidavit), the respondent No 3 had further took into consideration the finding of Sri Virendra Kumar one man enquiry committee report agreeing in Chapter VI of the said Report wherein it was stated as follows :
(1) There is no congenial working atmosphere in the Institute and
majority of staff of NIFFT Employees Association are not performing their duties. They, while-away in loitering, absconding from duty, gossippmg as well as abusing and threatening of dire consequences to the officers and administrative of the Institute even on triffling matter of insignificant value.
(2) Our past experience shows that no disciplinary action can successfully be taken for lack of witnesses as people doubt to pick UP courage to come forward openly against those militant hard liners.
(3) As a consequence lot of administrative and academic energy
and resourcesi have to be spent to keep atleast the minimum activities of the Institute going on and tackling the difficult situation created by the Association activities.
(4) The officers connected with the administration and management
have to work under tremendous psychological pressure and depression and lurking danger of being manhandled.
He further took into consideration the fact that on earlier occasions also the Petitioner has committed rioteous, disorderly, indecent and indisciplined behaviour with Dr. Khanna, the then Director but no departmental proceeding could be initiated against him.
71. The respondent No. 3 further observed :
I am afraid that if prompt action is not taken against the said Mr. Deepak Diwanjee for his aforementioned misconduct dated September 6, 1989, September 7,1989 and of today i.e. September 18, 1989, it will lead to serious indiscipline in the Institute and Mr. Deepak Diwanjee can use it as a sign weakness of the NIFFT authorities which will encourage him further to set up his indiscipline and rioteous activities.
Mr. Deepak Diwanjee has not only given threats to my life and my family members but he also theatened the life of the officer concerned who would have been appointed as Enquiry Officer to conduct a departmental enquiry against him.
There is absolutely an odour of indiscipline, in subordinate and violence of the part of Mr. Deepak Diwanjee and there is every likelihood that there will be threatening, terrorizing to the Enquiry Officer if any appointed by the management to hold the departmental enquiry against him. Moreover, the person who witnessed the aforesaid incidents are the associates of Mr. Deepak Diwanjee and they are also directly concerned in the said incident.
Considering the above Facts and also with the view that I should not wait for any untoward indidents before any action be taken against Mr. Deepak Diwanjee, I am left with no option other than to invoke the provisions of Special procedure prescribed in the Discipline and Appeal Rules of the Institute.
72. The petitioner before the appellate authority did not deny or disputed the assertions of the respondent No. 3 with regard to the incident which look place on 7th September, 1989,12th September. 1989 and 15th September, 1989.
He further did not deny or dispute the findings of one man enquiry committee report, which clearly suggested that in past, it had not been possible to successfully hold the departmental proceeding.
73. The appellate authority in his order had also found that sufficient material’s existed for taking action as against the petitioner in terms of Rule 13 aforementioned.
74. The instant case, therefore, is squarely covered by the decision of the Supreme Court in Tulsiram Patel’s case (supra) and Satyavir’s case (supra).
In Satyavir’s case, (supra) the Supreme Court observed :
It is not a total or absolute impracticability which is required by Clause (b) of the second proviso. What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation.
The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority and must be judged in the light of the circumstances then prevailing. The disciplinary authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judgsof the prevailing situation that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.
It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry. Illustrative case would be–
(a) where a civil servant particularly through or together with his associates, so terrorizes threatens or intimidates witnesses who are going to give evidence against him with fear of reprisal as to prevent them from doing so, or
(b) Where the civil servant by himself or together with or through others threatments, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or direct it to be held, or
(c) Where an atmosphere of violence or of general indiscipline and insubordination prevails. It being immaterial whether the concerned civil servant is or is not a party to bringing about such a situation. In all these cases, it must be remembered that numbers coerce and terrify while an individual may not.
75. In Shivaji Atmaji Sawant v. State of Maharashtra aud Ors. , the Supreme Court reiterated its views in Satyabir Singh’s case (supra) and observed :
A person who incites others to commit violence is a guilty, if not more so, than the one who indulges in violence, for the one who indulges in violence may not have done so without the instigation of the other.
76. In Tulsiram Patel’s case , it has Inter alia been observed :
It would also not be reasonably practicable to bold the inquiry where an atmosphere of violence or of general indiscipline and in sub. ordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this conection, we must bear in mind that numbers coerce and terrify while and individual may not. The reasonable practicability of holding an inquiry in matter of assessment to be made by the disciplinary authority. Such authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that Clause (3) of Article 311 makes the decision of the disciplinary authority on this question final.
77. The case at hand, therefore, is fully covered by the aforementioned decisions of the Supreme Court.
From what has been noticed hereinbefore, it is evident thai the impugned order passed by the respondent No. 3 upon dispensing with disciplinary proceedings upon taking into consideration, the cumulative effect of all the incidences together with the report of the one man committee can neither be said to be arbitrary or irrational.
It is true that in the first information report, the main allegation was against Shri S.K. Singh, but while considering the justifiability of the order passed by the respondent No. 3, the conduct of the petitioner subsequent to 6-9-1989 cannot be lost sight of, nor the impact thereof in the mind of the disciplinary authority can be brushed aside.
Further, it is well-known that the grant of a writ of certiorari is a discretionary remedy. The Court while granting relief may not exercise its discretion only because is lawful to do so. The Court while doing so may consider the subsequent conduct or the writ petitioner also.
78. In this case, the petitioner has annexed a purported copy of a letter dated 12th September, 1989 issued by the Administrative Office of the respondent-Company, which is a part of Annexure-9, as also a letter dated 14-9-1989 purported to have been issued by the Security Officer thereof.
In the said letter, the aforementioned Officer purported to have stated that the employees did not use filthy and abusive language against the Director and further suggested that no stern action like dismissal or termination of the services of the petitioner should be taken.
79. The said documents were filed before the appellate authority for , the first time on 27-3-1991, as is evident from the statements made in para-36 of the writ petition.
The appellate authority in bis order dated 31-12-1991, while considering the Ground Nos. C, D, and F of the Memo of Appeal filed by the petitioner held as follows–
It appears that the Administrative Officer of the NIFFT and not the Director (the Disciplinary Authority) baa lodged information with the local police for the alleged incident. It is usual routine administration work of the Administrative Officer to look after the security of the NIFFT and its officers, students and employees end in discharge of his official duty he lodged the information with police. Under the circumstances the Director cannot be termed as an informant of the case.
Ground (c), (d) and (f): Shri Diwanjee did not make any whisper about the said notes of Administrative Officer or Security Officer in his memo of appeal nor he mentioned the said grounds in hit memo of appeal.
Shri Diwanjee for the first time by his letter dated 25-5-1991 brought the said two notes to the knowledge of the undersigned.
On perusal of the records, I find that the said notes/letters were not submitted to the Director at any point of time nor the Director ever asked for such report/note from the Administrative Officer and/or Security Officer. It also appears that for manufacturing and creating those notes in connivance with Shri Diwanjee, departmental enquiries against the Administrative Officer and Security Officer were initiated. The departmental enquiry against the Administrative Officer is still pending During the course of departmental enquiry, the Security Officer submitted his explanation on 20-6-1991, from perusal of which it is evident that the Security Officer had never submitted the said note dated 14-9-1989 to the Director. It was further stated by him that he was called by the Administrative Officer at his residence in the month of January, 1991 where Sri Diwanjee was also present and the Administrative Officer handed over a type-written note sheet to the Security Officer and pressurised him to sign the same by putting the date as 14-9-1989. From the said explanation it further appears that on the pressure and threats given by Administrative Officer who was controlling officer of Security Officer, the Security Officer was compelled to sign the said note sheet putting the date 14-9-1989 and the said note sheet thereafter was taken by Administrative Officer in his custody.
The above explanation of Security Officer clearly goes to show that the said note sheet of Security Officer is forged, manufactured and created document which was manufactured and created at the connivance of Administrative Officer and Shri Diwanjee. In the light of the above, the alleged note situated 12-9-1989 of the Administratve Officer is also questionable and throws a serious doubt and it could clearly be held that the same is manufactured, created and concocted document and by no stretch of reasoning, the said note sheets be relied upon.
80. The respondents in para-64 of the counter-affidavit also stated that the aforementioned letter dated 12-9-1989 issued by the Administrative Officer was a manufactured document as he was presently not in good terms with the respondent No. 3.
It was further pointed out that the Administrative Officer had also filed a writ application before this Court being CWJC No. 2568 of 1990 (R) and this the said letter was manufactured by him in connivance to the writ petitioner to suit his purposes.
81. It was further pointed out therein that for the aforementioned action on the part of the Administrative Officer, a disciplinary action has already bean initiated against him and he has been put under suspension.
82. It has further been pointed out that the said letter dated 12-9-1989 was filed for the first time in CWJC No: 760 of 19 (R) at the time of hearing thereof.
83. It has also been pointed out that no comment or signature of the respondent No. 3 appears on the aforementioned letter dated 12-9-1989.
In this connection, the respondents, as noticed hereinbefore, has also filed a letter dated 8-9-1989 issued by the Administrative Officer himself to the S.D.O. (Annexure-0), .wherein a prayer was made to depute a Magistrate and a police force in order to save the life and property of the Director.
84. So far as the purported letter dated 14-9-1989 issued by the Security Officer is concerned, the respondents have annexed and explanation dated 20th June, 1991 filed by him which is contained in Annexure-P to the counter affidavit which reads as follows–
That I beg to submit in this connection that during the month of January, 1991, I was called by the Administrative Officer Mr. N.N. Sinha at his residence and on his call I went to his residence at about 600 p. m, and found Mr. Sinha and Mr. D. Diwanjee were taking tea. Thereafter, Mr. N.N. Sinha handed over a typed note sheet and pressurised me to sign the same putting the date as 14-9-1989. On the pressure and threats given by Mr. N.N. Sinha I put my signature in the typed note sheet and after my signature Mr. Sinha took the note sheet in his custody. It may also be stated that Mr. N.N. Sinha during was my controlling officer.
That I have never submitted the above note sheet to you.
In the circumstances stated above I hereby apologise for the above act and request that I may be excused.
85. It is thus clear that the petitioner was instrumental in obtaining the forged and fabricated letters at least from the Security Officer of the Company.
Prima facie it is difficult to believe that Administrative Officer could write such a letter dated 12-94989 in view of the fact that be himself lodged the first information report (Annexure-5) as also write the letter dated 8th September, 1989 addressed to the S.D.O. which is contained in Annexure-‘O’ to the counter-affidavit.
86. It may further be noticed that the appellate authority has also rightly taken into consideration the following :
It is well-known that NIFFT is imparting advanced and specialised education in the field of foundary and forge technology and all the funds of the NIFFT are made available by the Central Government and imparting of education is in the nature of a mission or a noble vocation and disruption or disturbances on such mission on account misconduct of an employee cannot be overlooked taken in easy manner for making him bolden and (Sic).
87. The aforemention observation has been made as one of the grounds by the appellate authority for holding :
I may further add that at no point of time the situation can be brought to improvement or the danger could be over if Shri Diwanjee remained service or allowed to be continued in services at the expenses of the Central Government.
88. It is well-known that while considering a matter relating to disciplinary proceeding, the High Court cannot sit in an appeal.
[See: State of Maharashtra and Anr. v. Madhukar Narayan Mardikar ].
89. The contention of Mr. P.K. Sinha to the effect in the first informa tion report, the main allegations having been made as against S.K. Singh, no disciplinary action should have been taken as against the petitioner, cannot be accepted for the reason that the petitioner has been found by the concerned respondents as the instigator and prime force behind the unlawful action of other employees. Further, as noticed hereinbefore, the impugned order has been passed against him not only on the basis of the incidence which took place on 6-9-1992 but also on the basis of his subsequent conduct and past records.
A Division Bench of this Court in Girija Nandan Singh v. State of Bihar 1987 PLJR 95, has held that an order of dismissal passed as against an employee cannot be set aside only on the ground that other employees had not been proceeded against departmentally. The aforementioned decision is binding on this Court.
Taking into consideration all the facts and circumstances of the case, I am also of the opinion that punishment meted out to the petitioner cannot be said to be arbitrary or grossly disproportionate to the acts of misconduct committed by him.
90. For the reasons aforementioned, I am of the view that the action on the part of the respondent No. 3 to take recourse to Rule 13 of the Disciplinary and Appeal Rules was Justified.
91. Re-question No. (3)
It is accepted that in this case that respondent No. 3 is the disciplinary authority in relation to the petitioner. It is also admitted that the incident Which led to the passing of the ultimate order of dismissal as against the petitioner by the respondent No. 3 centers round him. It is in this situation Mr. P.K. Sinha submitted that respondent No. 3 could not have acted as a disciplinary authority as against the petitioner.
92. There cannot be any doubt that the doctrine of Nemo Judex Sua Causa’ is one of the two fundamental pillars of the principles of natural justice. In this case, there is, thus no doubt that respondent No. 3 being of judge of his own cause would have otherwise disentitled himself from acting as a disciplinary authority.
The question, however, which arises for consideration is as to whether there being no other disciplinary authority, can the plea of ‘bias’ be sustained against respondent No. 3 by applying the doctrine of necessity?
93. Rule 2(e) of the Disciplinary and Appeal Rules of respondent-Company defines ‘Disciplinary Authority’ and in terms thereof it is accepted at the Bar that respondent No. 3 was the only the Disciplinary Authority in relation to the petitioner.
94. It is a well known principle of law that not only bias in fact, but also a real likelihood of bias which may give impression to the others that the adjudicator could have been biased as against the suiter and a reasonable suspicion which may be entertained in relation thereto by a reasonable man suffices to vitiate the proceeding.
With regard to bias in relation to a judicial Tribunal, the test, that is applied, is not whether in fact a bias has affected the judgment but whether. a litigant could reasonably apprehend that a bias attributable to a member of the Tribunal might have operated against him in the final decision of the Tribunal.
[See: Manek Lal v. Dr. Purn Chand ; A, K. Kraipak and Ors. v. Union of India (UOI) and Ors. and Ranjit Thakur v. Union of India (UOI) ].
95. However, while considering whether there is a reasonable ground for apprehension that the Tribunal is biased, one should feel satisfied that substantial miscarriage of Justice will take place in the event of refusal of the said application.
In disciplinary proceeding like the present one, however, the situation might be different.
96. H.W.R. Wade in his Administrative Law, VIth Edition at page 478 states :
In all the cases so far mentioned the disqualified adjudicator could be dispensed with or replaced by someone to whom the objection did not apply. But there are many cases where no substitution is possible, since no one else is empowered to act. Natural justice then has to give way to necessity, for otherwise there is no means of deciding and the machinery of justice or administration will break down.
The learned Author proceeds to state :
In administrative cases the same exigency may easily arise. Where Statute empowers a particular minister of official to act, he will usually be the one and only person who can do so. There is then no way of escaping the responsibility. even if he is personally interested. Transferor responsibility is, indeed, a recognised type of ultra vires. In one case it was successfully argued that the only minister competent to confirm a compulsory purchase order for land for an airport had disqualified himself by showing bias and that the local authority could only apply for a local Act of Parliament. The Court will naturally not allow statutory machinery to be frustrated in this way. For similar reasons a governor of a colony may validly assent to an Act of indemnity, for his own actions, since otherwise the Act could not be passed at all.
97. Mr. P.K. Sinha, however, submitted that in terms of a circular dated 27-1-1965 a disciplinary authority while being disqualified to Act, can ask for provisional appointment of another disciplinary authority. The circular in question was issued by the Post and Telegraph Department. Respondent No. 2 is a body corporate. Respondent No. 3 is the Director of the respondent No. 2-Institution. He has been delegated with the power of taking disciplinary action as against the employees of the institution. Respondent No. 4 being the Chairman of the respondent No. 2 is the specified Appellate Authority, in relation to disciplinary proceedings.
98. There is nothing to show that the circular letters of the Post and Telegraph Department are applicable in relation to the Government Companies within the meaning of Section 617 of the Indian Companies Act. Respondent No. 2-Company being the employer has its own set of disciplinary Rules.
In the said Rules the ‘disciplinary authority’ having been defined, no person other than the Director can act as a Disciplinary Authority. The aforementioned circular was never placed either before the respondent Nos. 2 and 3 or before this Court in the earlier writ petition. Even in this writ petition the said point was not taken. Mr. P.K. Sinha drew my attention to the aforemention Circular only when he was confronted with the ‘doctrine of necessity’.
99. In this view of the matter, in my opinion, the petitioner cannot successfully question the order of dismissal passed as against him by the respondent No. 3 on the ground of bias.
Further, as noticed hereinbefore, in terms of the decision of the Supreme Court in Tulsi Ram Paters case AIR. 1985 SC 1416, Satyabir Singh’s case AIR 1986 SC 555 and Ram Chandra’s case AIR 1986 SC 1173, the delinquent employee gets an opportunity to place all the documents before the appellate authority. It is not the case of the petitioner that respondent No. 4 being the appellate authority had any bias as against him.
100. In terms of the decisions of the Supreme Court aforementioned, it is the appellate authority who is to apply his mind independently upon all the materials on records in order to arrive at an independent finding. The petitioner, therefore, cannot be said to have been prejudiced at a 1, inasmuch as, the appellate authority has considered all the materials as against the petitioner as also the materials placed before him by the petitioner and upon application of his own independent mind.
101. It may further be pointed out that the doctrine ‘nemo judex suo causa’ is although one of the twin pillars of the principles of natural justice, in Tulsi Ram Patel’s case (supra) as also in Satyabir Singh’s case (supra), it has clearly been held that Clauses (b) and (c) of Second Proviso appended to Article 311(2) of the Constitution of India carve out an exception to the principles of natural justice. Thus, if by reason of the first limb of the principles of natural justice, justice, ‘audi altrem’ partem the right of the employees to be provided with an opportunity of bearing can be dispensed with there cannot be any reason as to why the second limb thereof, namely, ‘nemo judex sua causa1 cannot be dispensed with particularly in view of the fact that the order passed by the disciplinary authority has to be considered on its own merits by the appellate authority independently upon consideration of the entire materials and Upon giving an opportunity of personal hearing to him.
102. Further, as has lightly been pointed out by Mr. Debi Prasad that in the earlier writ applications being CWJC No. 114 of 1990(R), 760 of 1990(R), 1030 of 1991(R) and in appeal, the petitioner did not raise the question of ‘bias’ specifically.
103. From perusal of the judgment of the appellate authority as contained in Annexure-13 to the writ application, it appears that although the said point had casually been taken in the memorandum of appeal, but the same was not pressed by the petitioner at the time when be was heard personally by respondent No. 4 in the said appeal. The petitioner, thus, must be held to have waived his right to question the impugned order as contained in Annexure-2 to the writ application on the ground that the same was vitiated by reason of bias on the part of the respondent No. 3.
104. In this view of the matter, it is not necessary for me to entertain the debatable question as to whether such impugned order is void or voidable in view of the fact that it is well-known that ‘waiver’ is only one of many factor which may induce a court to refuse any relief to the writ petitioner.
105. In Administrative Law by H.W.R- Wade at page 352, the law has been stated thus–
The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff’s lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason.
106. The Supreme Court yet recently in Orissa Cement Ltd. v. State of Orissa , held that grant of relief in a writ petition may not always be a logical corrolary to a finding as the Court in its discretion may refused to grant relief of reinstatement or backwages, even upon holding that the order of termination was illegal. In that case the Supreme Court refused the relief of grant of refund of the amount of case, although it held that realisation of cess from the mining lessees by the State Government was unconstitutional.
107. Re-Question No. (4)
The principles of res-judicata are in the realm of procedural law. So far as a writ petition is concerned, the Statutory principles of res-judicata as embodied in Section 1 of the Code of Civil Procedure are not applicable to a writ proceedings in view of Section 141 thereof. In terms of the rules framed by the Patna High Court also, the provisions of Code of Civil Procedure have not been made applicable to a proceeding under Article 226 of the Constitution of India. The general principles of res-judlcata or constructive res-judicata are, however, applicable in a writ proceedings. Explanation appended to Section 11 of the Code of Civil Procedure is not attracted in this case, as all the earlier writ petitions filed by the petitioner were allowed on technical grounds. This Court in the earlier writ petitions did not consider the contentions which have been raised in this application. Further, if the impugned orders were nullities, the same could not have been validated by invoking the principles of res-judicata.
Reference, in this connection may be made to Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors. .
In this view of the matter, this contention raised on behalf of the respondent must be rejected.
108. For the reasons aforementioned, this writ petition is dismissed. Regard, however, being to the facts and circumstances of the case, there will be no order as to costs.